In an opinion today, Judge Swain concluded that it was “fair use” for to the makers of the NBA 2K video games to depict players’ tattoos (see our prior coverage here). Judge Swain had earlier concluded the fair use defense was not enough to dismiss the case on the pleadings, but, following discovery, today concluded that summary judgment was appropriate. She found that the factors used in determining fair use all favored the video game maker.
First, the use was “transformative”: “[W]hile NBA 2K features exact copies of the Tattoo designs, its purpose in displaying the Tattoos is entirely different from the purpose for which the Tattoos were originally created. The Tattoos were originally created as a means for the Players to express themselves through body art. Defendants reproduced the Tattoos in the video game in order to most accurately depict the Players, and the particulars of the Tattoos are not observable.”
Second, as to the “nature of the copyrighted work,” Judge Swain found that “the Tattoo designs are more factual than expressive because they are each based on another factual work or comprise representational renderings of common objects and motifs that are frequently found in tattoos.” This included, for example, a tattoo depicting LeBron James’s son that was based on a photograph.
Third, as to the quantity of use, the tattoos were “reduced in size” so that they are almost “not recognizable.”
Fourth, as to market effects, Judge Swain found that there was no market for tattoo licensing in video games, nor was one likely to develop.